A Common Law Court

Abstract

With reference to implementing the Basic Law, as discussions on the appropriate process for its interpretation and application took shape, proposals ranged from vesting the primary power to interpret the Basic Law in the Standing Committee of the National People’s Congress (NPC) to vesting such power exclusively in the Hong Kong courts. For a constitutional lawyer a comparative look at the concept of constitutional judicial review appears relevant to this discussion and to the overriding constitutional mission at hand. Constitutional judicial review refers to vesting in appropriate courts power to determine whether legislation conforms to the imperatives of the constitution or Basic Law. This includes the power to interpret the Basic Law in order to determine its requirements.1

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Notes

1.

While Hong Kong’s current colonial government is constituted under certain Letters Patent and Royal Instructions, these documents contain no bill of rights component and Hong Kong has had no experience with constitutional judicial review of legislation. Historically, a more important conceptual limitation on the legislature may have been the enormous powers of the colonial governor. While Hong Kong courts have not historically asserted any power to throw out legislation for offending the Letters Patent and Royal Instructions, such courts have in contexts other than the review of legislation asserted a power to construe the meaning of the constitutional documents and have a limited experience with other forms of review of legislation. Furthermore, while it does not appear that Hong Kong courts have actually exercised constitutional judicial review to invalidate local legislation, recent opinion has increasingly asserted the view that Hong Kong courts, at least in theory, possess such power. See P. Wesley-Smith, Constitutional and Administrative Law in Hong Kong, Vol. II (China and Hong Kong Law Studies, Hong Kong, 1987). Others, in view of the fact that such power has not in fact been exercised, take the view that it does not exist. See note 80. Nevertheless, constitutional judicial review, while possibly being a new addition within the emerging more elaborate future constitutional framework, would be consistent with the existing Hong Kong experience. With these important distinctions, however, it is generally true that by legal training and practice Hong Kong has largely (with limited exceptions) shared the British unwritten constitutional tradition of legislative supremacy. While Annex I, Article II of the Joint Declaration, calls for continuance of Hong Kong’s current laws, it therefore appears that the implementation of a written basic law with a bill of rights component will inherently cause a fundamental change from which there will be no adequate appeal to the present system.Google Scholar

For indications of the vigour of resort to courts for review of administrative process in Hong Kong, see generally D. J. Clarke, B. Lai and A. Luk, Hong Kong Administrative Law: Cases and Materials (Unpublished Manuscript, University of Hong Kong, Department of Political Science, 1986, 600 pages).Google Scholar

6.

It should be noted that the PRC does not employ constitutional judicial review, using instead legislative implementation of its national constitution, i.e., constitutional rights and principles take on life when enacted into legislation by the NPC or its Standing Committee. Constitution of the People’s Republic of China, Article 67. See generally, R. Edwards, L. Henkin, A. Nathan, Human Rights In Contemporary China, (Columbia University Press, New York, 1986);Google Scholar

A. Chen, ‘Xiang Gang ji ben fa de jie shi’ (The question on the interpretation of the Hong Kong Basic Law), Wide Angle Magazine, 150, pp. 24–7, 16 March 1985. As noted in Chapter 2, some Beijing drafters have compared the draft provisions with practices in the European Community, but this has been put forth later as a way of responding to questions concerning independence and finality of the local courts under the draft. The model, however, is rooted in Chinese practice and not the European Community, especially as regards legislative interpretation.Google Scholar

9.

Separation of powers with checks and balances usually suggests some form of constitutional judicial review as a means for the courts to perform their role of checking the other two branches of government. This can be distinguished from a French-style functional separation of powers. See M. Cappelletti, Judicial Review in the Contemporary World (The Bobbs-Merrill Company, Inc., 1971), p.35;Google Scholar

B. Neuborne, ‘Judicial Review and Separation of Powers in France and the United States’, 57 N.Y.U.L. Rev. 363 (1982). The political structure subgroup appears to have recognized this tension between its proposals and those of the subgroup on local/central relations in its meetings in February of 1987, when it endeavoured to address the duties of the future judiciary. ‘Basic Law Compromise Sought’, South China Morning Post, 17 February 1987. These meetings pushed to the forefront certain tensions between those advocating the power of constitutional review in the Hong Kong courts and those advocating Standing Committee review. Compromise positions that are more politically than theoretically or practically informed were advanced. It appears that this issue will remain with us under an ambiguous final provision even in the implementation phase. The question of direct elections has often overshadowed this and other important issues resulting in very little study of the interpretation question. The final solution to this question should have been worked out in the final draft of the Basic Law but could well be fashioned by the future judiciary with Standing Committee acquiescence. This chapter points out some theoretical and structural aspects of the issue for consideration over the long-term dialogue in this area.Google Scholar

L. G. Ratner, ‘Constitutions, Majoritarianism, and Judicial Review: The Function of a Bill of Rights in Israel and the United States’, 26 American Journal of Comparative Law 373 (1978);CrossRefGoogle Scholar

For articulation and further reference concerning original intent or the interpretivist position, see e.g., R. Berger, Government by Judiciary, the Transformation of the Fourteenth Amendment (Harvard University Press, 1977).Google Scholar

For the more expansive views, see e.g., Bickel, The Least Dangerous Branch;Google Scholar

Most civil law jurisdictions have openly acknowledged the essential political nature of constitutional judicial review in their creation of separate constitutional courts. These courts have in some cases made dramatic constitutional decisions. See generally, S. G. Mezey, ‘Civil Law and Common Law Traditions: Judicial Review and Legislative Supremacy in West Germany and Canada’, 32 International and Comparative L. Quarterly 689 (1983) (discussing abortion cases);CrossRefGoogle Scholar

D. Kommers, ‘The Jurisprudence of Free Speech in the United States and the Federal Republic of Germany, 53 So. Cal L. Rev. 657 (1980). These cases are matched in America by decisions such as the leading American abortion decision, Roe vs. Wade, 410 U.S. 165 (1973) (now under challenge).Google Scholar

Ibid., pp.517–19. Dean Guido Calabresi has developed an excellent analysis of the dialogue process between courts and the legislative branch in his book focused on updating statutes — G. Calabresi, A Common Law for the Age of Statutes (Harvard U. Press, 1982).Google Scholar

48.

See M. Cappelletti, ‘The “Mighty Problem” of Judicial Review and the Contribution of Comparative Analysis’, 53 So. Cal. L. Rev. 409, 439 (1980): ‘As for the alleged “shift away” from democracy, an elementary awareness of historical developments should suffice to convince us that, at least in modern systems of government, precisely the opposite is true. All totalitarian regimes of our century have shown themselves to be antagonistic towards judicial review of governmental, particularly legislative action’ (p.439).Google Scholar

Constitution of the People’s Republic of China; See generally Edwards et al., Human Rights in Contemporary China; A. Chen, ‘Xiang Gang Ji Ben Fa de Jie Shi’ (The Question on the Interpretation of the Hong Kong Basic Law), Wide Angle Magazine, 150, 16 March 1985, pp.24–7. Recent political debate in China has brought greater attention to political and economic rights both among officials and more dramatically among the public at large. See e.g. Resolution of the Sixth Plenary Session of the 12th Central Committee of the Communist Party of China, reported in South China Morning Post, Monday, 29 September 1986, pp.22–3. Many people in China have recognized a relationship between political reform and economic success. Yet, as illustrated in the recent official response to calls for human rights and democracy, China has yet to develop a coherent and comprehensive process for implementation of constitutional rights, leaving China’s rights record in disarray.Google Scholar

See Tarnopolsky and Beaudoin, Canadian Charter of Rights and Freedoms (The Carswell Company Ltd., 1982).Google Scholar

79.

H. Tanaka, ‘Legal Equality Among Family Members in Japan — The Impact of the Japanese Constitution of 1946 on the Traditional Family System’, 53 So. Cal. L. Rev. 611, 616 (1980).Google Scholar

80.

It has been pointed out that although England has employed parliamentary supremacy since the Glorious Revolution of 1688, this doctrine in some respects produced the opposite result in the British colonies, empowering colonial judges to disregard local legislation not in conformity with English law. See Capelletti, Judicial Review in the Contemporary World, p. 40. It has been reckoned that more than 600 colonial laws were invalidated by the Privy Council from 1696 to 1782 (ibid.). Canada, Australia and India have likewise adopted constitutional judicial review, while South Africa, with a more troubled rights record, has not (ibid., p. 41). While Hong Kong does not have experience with constitutional judicial review of legislation, it does have a British system of judicial review of administrative acts. See note 1. Though without a written bill of rights Hong Kong also has some restricted and hardly used means for courts to review legislation. See P. Wesley-Smith, ‘Legal Limitations Upon The Legislative Competence of the Hong Kong Legislature’, 11 Hong Kong L. Rev. 3–31 (1981). Most noteworthy is a limited power of review for conformity to acts of the British Parliament. Rediffusion (H.K.) Limited vs. Attorney General, 1968 HKLR 277 (Sup.Ct.)l; Rediffusion (H.K.) Limited vs. Attorney General, 1970 HKLR 231 (Privy Council); In re an application by the Attorney General, 1985 HKLR 381 (High Court). As a practical matter such power is rarely exercised and Hong Kong generally adheres to the British tradition in this respect. Given the experience in other former British overseas possessions, however, building a system of constitutional judicial review on this base would be very much within the scope of Hong Kong’s current legal tradition.Google Scholar

82.

For an outline of German historical development of constitutional judicial review see G. Casper, ‘Guardians of the Constitution’ 53 So. Cal. L. R. 773, 775–778 (1980). With limited exception (1929) there was general hostility to this concept from 1871 up to the demise of the Nazi regime, a period which would encompass Chinese exposure to German legal traditions. France, another source of Chinese exposure to modern constitutional systems, has likewise had a tradition of hostility to constitutional judicial review which is only now starting to break down. See note 51. France, however, like England, has vigorously employed administrative judicial review.Google Scholar

85.

There should be no serious concern with the ability of Hong Kong’s common law courts to exercise restraint within certain limited areas of national concern. Under the American political question doctrine the common law courts in the United States have shown similar restraint with respect to issues felt more appropriately left to other branches of government. Within the foreign affairs area the English act of state doctrine apparently reveals such restraint, as does the rather different act of state doctrine in the United States. Under the Eighth act of state doctrine ‘an act of state is essentially an exercise of sovereign power and hence cannot be challenged, controlled or interfered with by municipal courts’. 18 Halsbury’s Laws of England, Section 1414 (4th edn). An act of state is defined as a ‘prerogative act of policy in the field of foreign affairs performed by the Crown in the course of its relationship with another state or its subjects’ (ibid., section 1413). It includes matters such as concluding treaties, declarations of war, annexation of land. The occasion for restraint under the American act of state doctrine arises with reference to sovereign acts of foreign states and is principally concerned with notions of separation of powers in the American government. Banco Nacional de Cuba vs. Sabatino, 376 U.S. 398 (1964); see M. C. Davis, ‘Domestic Development of International Law: A Proposal for an International Concept of the Act of State Doctrine’, 20 Texas lnt’l L. J., 341 (1985). It is for the courts to determine the occasion for applying the political question doctrine and the act of state doctrines. This tradition of restraint by common law courts should adequately address any concern with Hong Kong courts too aggressively intruding on areas of national concern, including any inappropriate intrusion on China’s retained powers over foreign and defence affairs for Hong Kong. See Joint Declaration, paragraph 3(2). In such areas common law courts are appropriately equipped to determine the occasion for restraint. Such occasion for restraint will also, no doubt, occasionally arise with respect to Hong Kong’s exercise of foreign affairs in those areas where it has retained such power (for instance, commercial relations) under the terms of the Joint Declaration. On other occasions such restraint may be unnecessary with respect to an issue concerned with foreign or defence affairs. While this line is difficult to draw, within the Hong Kong context, the common law courts may generally be best suited for this task. The constitutional committee can in effect serve as a back-up device in this sensitive area and symbolize national authority. Yet, the Hong Kong courts should interpret the entire Basic Law independently and without being subject to appeal to higher authority.Google Scholar